Map of Treaty 8 territory. Image retrieved from: <www.canadiangeographic.com/youarehere/?path=english/nos_cartes-our_maps/entente-deal>
Today’s post will review the Supreme Court of Canada case of R v Badger, a leading case on treaty hunting rights and treaty interpretation.
Three appellants, Wayne Clarence Badger, Leroy Steven Kiyawasew, and Ernest Clarence Ominayak (all three were Cree status Indians under Treaty 8) were charged with violating provisions of the Alberta Wildlife Act.  Specifically, Mr. Badger was charged under s. 27(1) for shooting a moose outside of the hunting season. Mr. Kiyawasew and Mr. Ominayak were charged under s. 26(1) for shooting moose without hunting licenses. All three were hunting on privately owned lands within ceded Treaty 8 territory.
Three issues were raised by the appeal:
- Are status Indians allowed to hunt on private lands situated within ceded treaty territory?
- Did the Natural Resources Transfer Agreement, 1930 (NRTA) modify or extinguish the appellants’ hunting rights?
- Do sections 26(1) and 27(1) of the Wildlife Act apply to status Indians?
The Court set out a standard for determining if status Indians can hunt on privately owned land. Justice Cory stated, “the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use.”  In applying this new approach, the Court found that both Mr. Badger and Mr. Kiyawasew were hunting on lands that they did not have a right of access. Mr. Badger was hunting a quarter of a mile from a farm house that did not appear abandoned while Mr. Kiyawasew was hunting in a field where crops were recently harvested, run-down barns were close, and signs were posted. However, Mr. Ominayak was hunting on a muskeg, with no signs, fences, or buildings nearby. The Court found that this was unoccupied land for the purposes of hunting and within the scope of Mr. Ominayak’s treaty right to hunt.
Treaty 8 outlined two restrictions on hunting rights: first, a geographic limitation, i.e., the hunting rights only apply within the surrendered tracts; and second, government regulations for conservation purposes.  The NRTA transferred responsibility over game laws from the federal government to the provincial governments. In doing so, it also conferred the power to apply conservation laws to status Indians in order to protect game and fish supplies.  The Court found that the NRTA did not extinguish the treaty right to hunt for food. Rather, the NRTA modified the treaty right by ending the right to hunt commercially but increased the hunting area to include all unoccupied Crown land in the province, during any season. Under both the Treaty and the NRTA, hunting rights would be subject to conservation regulations.
Based on the visible, incompatible use standard mentioned above, the Wildlife Act did not infringe on Mr. Badger’s and Mr. Kiyawasew’s treaty rights since they had no right of access to the lands in question. Thus, the Wildlife Act applied to both hunters.  Because Mr. Ominayak was hunting on land not being put to visible use, his treaty right to hunt was not affected by the geographic limitation. In applying the Sparrow test, the Court found that the hunting licensing scheme prima facie infringed Mr. Ominayak’s treaty rights; however, the Court could not make a finding on whether the infringement was justified since the government did not present any evidence to that effect. 
Mr. Badger’s and Mr. Kiyawasew’s appeals were dismissed while Mr. Ominayak’s appeal was allowed and a new trial was ordered to determine whether the government could justify their infringement on his hunting rights. 
In its decision, the Court also set out established treaty interpretation principles: 
- Treaties are sacred, solemn agreements between First Nations and the Crown
- The honour of the Crown is always at stake
- It is assumed that the Crown intends to fulfill its obligations and “sharp dealings” will not be tolerated
- Any ambiguities in the treaty will be resolved in favour of the First Nations
- Any restrictions of rights under the treaty will be narrowly construed
- The onus of proving rights under the treaty have been extinguished lies on the Crown
- The Crown must show that there was clear and plain intent to extinguish the rights
- Treaties must be not be interpreted in a strict technical sense but rather in the sense that they would have been understood by the First Nations at the time of the signing 
- Because the First Nations relied on oral agreements rather than written ones, verbal promises made by commissioners during negotiations are useful in treaty interpretation 
Professor Catherine Bell argues that the decision is a disappointing one, writing that the power of the federal government to abrogate treaty rights unilaterally without the consent of Treaty Nations “leaves treaty rights in a vulnerable position.”  A more progressive approach to treaty jurisprudence could better recognize the nation-to-nation relationship the treaties solemnized.
Until next time,
Team Reconcili-Action YEG
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 R v Badger,  1 SCR 771 at paras 21-22, 133 DLR (4th) 324 [Badger].
 Ibid at para 54
 Ibid at para 40.
 Ibid at para 33
 Ibid at para 83.
 Ibid at para 101.
 Ibid at para 98.
 Ibid at para 41.
 Ibid at para 52.
 Ibid at para 55.
 Catherine Bell, “R. v. Badger: One Step Forward and Two Steps Back?” (1997) 8:2 Const Forum Const 21 at 26.
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